Some rare good news about probate

Score one for the old, the sick and the vulnerable - which, in Arizona, is saying something.

The Arizona Court of Appeals on Thursday tossed out a probate judge's ruling that R.B. Sleeth must pay $265,000 to a lawyer who spent most of his time fighting the old guy's wishes.

Sleeth, as you may recall, is the 81-year-old Paradise Valley man who spent 10 weeks imprisoned in a lockdown unit for advanced Alzheimer's patients in Scottsdale, never mind that he didn't have Alzheimer's. It took him nearly two years to extricate himself from Maricopa County's Probate Court. Unfortunately, by then his $1.4 million estate had been reduced to "virtually zero," according to court records.

Now, however, both he and the others "protected" by probate may be able to fight back against the cozy club of fiduciaries and attorneys who so often seem to wind up with much of the money of the people they are paid to protect.

"Although the statutes require the protected person to pay for the services of those appointed or hired to assist him, this case illustrates an underlying flaw in the scheme that makes all the more compelling the superior court's close scrutiny of fee requests," the judges wrote.

"When a guardian or conservator has no personal financial obligation for attorney fees and no concern over whether his expenditures will be fully approved, he may lack incentive to avoid financial improvidence. In a case in which the protected person's estate suffers significant and harmful losses, the superior court must exercise its independent judgment to determine what portion of the attorney's fees were reasonably incurred."

Translation: It's time for probate judges to pack away their well-worn rubber stamps and remember who it is they are there to protect.

R.B.'s battle began in December 2007, when his son Mark stopped him from marrying Marge Foley and petitioned a probate judge to make him his father's guardian and conservator.

Marge and R.B. battled Mark through 2008, culminating in R.B.'s stay in the lockdown unit. Marge, then 73, claimed that R.B. was being overmedicated and that Mark was trying to cut her out of R.B.'s life against his wishes. Mark claimed that Marge was freeloading and taking advantage of his father's fragile condition.

In December 2008, probate Commissioner Richard Nothwehr removed Mark as guardian but left him in control of his father's finances. By February, Jane Anne Geisler, an independent guardian, was appointed and R.B. was weaned from an array of medications, including a powerful anti-psychotic. A month later, he and Marge married and returned home to find his house a mess, his utilities cut off and his bank account essentially empty.

R.B. was finally freed from the need for a guardian in November 2009, after a doctor determined he was never demented, just overmedicated. By then, Mark had already given up control of R.B.'s money amid discoveries that the older man had a stack of unpaid bills and his long-term-care insurance had lapsed.

Never mind that Ferris raised his rates by 18 percent - from $275 an hour to $325 an hour, as the economy collapsed. Never mind that R.B. was left so destitute he had to take out a reverse mortgage on his house to pay the bills. Never mind that Mark and Ferris thwarted R.B.'s wishes every step of the way.

Nothwehr ruled that R.B. owed Ferris $265,000.

Cue the appellate judges, who have ordered Nothwehr to reconsider. They rejected Ferris' astonishing claim that the laws don't require that the protected person derive any benefit from the legal fees he or she must pay. "We cannot agree that the legislature intended that courts overlook whether an attorney's or fiduciary's services produced any value or benefit to the protected person," the judges wrote.

Can I get a hallelujah?

There's lots of other good stuff in the 21-page ruling by Judges Sheldon Weisberg, Philip Hall and Donn Kessler. No more charging $100 an hour to make copies and send faxes and e-mails. No more block billing, making it impossible to determine whether the bills are reasonable. (In the eyes of probate judges, they always are.)

No more expecting to be paid for every hour worked. Henceforth, attorneys will have to prove their bills are actually reasonable and that their work benefited the person paying for it.

"To suggest that any action taken by counsel, however futile or unsound, warrants court approval is in insupportable," the judges said.

Can I get an amen?

Editor's note: Roberts' sister, Appellate Court Judge Ann Timmer, chairs a committee to review Probate Court practices. The Republic is disclosing the relationship to avoid any perception of a conflict of interest.